Mark Cuban's Plan for Limiting Scope of Discovery in Lawsuits | Hacker News Reader

Mark Cuban's Plan for Limiting Scope of Discovery in Lawsuits

institutionalinvestor.com

50 pointsmazurk37 comments

The article misses an important aspect of the situation, which is that discovery can be one of the most time-consuming and expensive part of any lawsuit. Typically, both sides will review all the documents that are relevant to the claims of the suit, precisely because of the danger raised by Cuban of the opposing side taking statements out of context. Automation makes some of this work quicker, because computers are getting pretty good at sorting relevant from irrelevant documents, but it'll be quite awhile before a computer can puzzle through the communications pertaining to a sale and figure out whether any statements can be construed as showing an intent to trade on insider information.

So ditching the paper trail can have benefits even if you didn't do anything wrong, because having fewer records can lead to lower discovery costs.[1] On the other hand, it could easily backfire. In many ways, the best way to counter an accusation of wrongdoing, say a sale that had suspicious timing, is to paint a detailed narrative, using records, of how the sale came about in a totally valid way. When you ditch the paper trail, you also lose the ability to point to hard evidence that no wrongdoing occurred. This is particularly relevant in a civil suit, because the burden of proof is only "more likely than not." Without a detailed record, the circumstantial evidence can easily be enough to tip the balance in favor of the plaintiff/prosecution.

Moreover, in the absence of documentary evidence, I imagine plaintiffs and prosecutors will do more old-fashioned lawyering: putting witnesses on the stand to testify. This can be extremely expensive in and of itself (what's the monetary value of taking your CEO out of commission for a few 7-hour depositions?) Moreover, it can lead to replacing a relatively neutral documentary record with unpredictable individual testimony. One of the highlights of the Microsoft antitrust trial was Gates' deposition testimony, which, when presented in court, made the judge laugh out loud (not in a good way).[2]

It's interesting to note that the large banks, which get sued regularly, have taken the exact opposite tack. Absolutely everything is recorded, including internal instant messaging. It's expensive for the bank to hire lawyers to comb through all this information, but on the flip-side, they have a detailed paper trail showing that everything was done by the book.

[1] In a way, it returns us to the status quo of the 1960's and 1970's, before the rise of electronic discovery making lawsuits significantly more expensive.

[2] http://www.cnn.com/TECH/computing/9811/17/judgelaugh.ms.idg/

> This is particularly relevant in a civil suit, because the burden of proof is only "more likely than not."

I imagine showing that a defendant is using disappearing messages will immediately open them up for an interesting line of questioning.

It does kinda scream: I needed to use a technology that was not eligible for the discovery process.

"It does kinda scream: I needed to use a technology that was not eligible for the discovery process."

May be, but that's still better than the actual proof still being around.

Quite. My wife works for a discovery vendor and while computers help a lot may things require judgment calls - the other day, for example, she spent an hour redacting handwritten expletives and strategy questions (which were privileged) that had been scrawled in the margins of a discoverable document. Although the cost of document review has fallen due to outsourcing, even a small matter typically involves hundreds of thousands of documents these days. A large one (like an SEC enforcement action) can involve tens of millions.

One other thing to bear in mind if prosecutors and plaintiff's attorneys start putting mroe people on the stand is that while the level of proof in criminal trials is that guilt be established 'ebyond a reasonable doubt', in civil trials (eg lawsuits by disgruntled investors or former business partners), the standard is 'preponderance of the evidence' - the trier of fact is justified in drawing inferences where evidence points towards it, even if there is no 'smoking gun', eg a series of communications leading up to a vanished CyberDust conversation.

Of course the other possibility is one that is ironically showcased in the article: you might believe you are communicating ephemerally, while your correspondent is taking screenshots of everything you send.

>Microsoft antitrust trial was Gates' deposition testimony, which, when presented in court, made the judge laugh out loud

I was in the courtroom when that happened, and you're right. My Wired article at the time said that "Gates gave narrow, evasive, and definition-twisting responses..." http://archive.wired.com/politics/law/news/1998/12/16589

What follows is a side note to Mark Cuban's point, but it's about Bill Gates and this is HN, so indulge me for a moment...

What we should also remember is that Thomas Penfield Jackson, who heard the case, was a preternaturally biased judge, very anti-Microsoft and pro-DOJ, who brought sympathetic journalists into his chambers during the trial for private chats likening Bill Gates and other MS execs to "drug traffickers" and "gangland killers."

The appeals court properly slapped Jackson down and handed the case to a different (and unbiased, as far as I could tell) judge: http://archive.wired.com/politics/law/news/2001/02/42071?cur... http://archive.wired.com/politics/law/news/2001/06/44886 "rampant disregard for the judiciary's ethical obligations... comments were not only improper, but also would lead a reasonable, informed observer to question the district judge's impartiality..."

If you're a smart, biased judge you'd presumably forego the cheap shots of laughing aloud in court and taking potshots at Bill Gates in chambers -- then go as far as you can in your final opinion. But Jackson proved to be a dumb, biased judge, which actually worked in Gates' favor when the appeals court reversed the order that would have carved up Microsoft into multiple pieces.

Also interesting to contemplate: yes, Jackson was an incompetent, biased, and generally pathetic excuse for a judge, but it's hard to argue that both Microsoft and its customers wouldn't be better off if the company had, in fact, been broken up. Sometimes a blind squirrel (or a sleepwalking one in this case) can still find a nut.

Nokia would have been better off...

Even after spending far too much of my life covering the Microsoft antitrust trial for Wired, I don't actually know whether that's the case or not. I don't think anyone does.

The original order, if I recall properly, would have created Microsoft Hardware with Windows/phones/TV boxes/handhelds/etc., and Microsoft Software with Office, IE, BackOffice, Outlook, etc. Note this predated the Xbox, Bing, etc.

Maybe it's true that Microsoft Software in this alternate universe would have turned to the cloud earlier than our MS did, but remember Microsoft Software was still pretty much desktop software with the exception of MSN (remember that?). Maybe Microsoft Hardware would have done a better job with mobile devices. Or maybe we wouldn't have seen devices like the Xbox or Kinect without those cross-business subsidies, and the Playstation wouldn't have any real competition today, and there would be less search competition without Bing and the MS money flowing into Yahoo, etc.

Really too many variables.

Actually, I would disagree.

Microsoft's hubris caught up with them in mobile, and they learned some valuable lessons. I would say they are better off now as the Microsoft they are today than they would have been if they had been carved up.

Fair enough, but Gates didn't help himself either. The point is that you never know when an executive will vent his frustration with the process in a way that comes across to the jury as arrogant and disdainful. You might very well prefer to make your case on a neutral paper record instead of on a jury's perception of your executives' testimony.

I'm calling it now: the counter will be law to require businesses to store all electronic conversations for a period of X years. Failure to do so will lead to a charge of hiding or destroying evidence.

Which, mind you, I'm not totally against.

Sure, Cuban may have good intentions with this, but really he's just making it easier for unethical people to be even more unethical.

This is already true in certain areas of the public sector. Florida, for instance, has broad public records laws. Since any written communication with a government employee about government business must be archived, the institution I was formerly affiliated with couldn't implement IM unless we enabled archiving for every IM conversation (probably not all conversation were subject to the rule, so you err on the side of caution and record them all).

See Sarbanes-Oxley: https://en.wikipedia.org/wiki/Sarbanes%E2%80%93Oxley_Act

Helping people maintain their privacy is "just making it easier for unethical people to be even more unethical"?

The idea that privacy is too dangerous for people to have is cynical. Passing laws to prevent privacy would be the worst kind of tyranny. Thankfully any practical attempt would be unconstitutional in the US.

>Helping people maintain their privacy

Businesses aren't people.

Businesses don't have conversations, people do.

Not the guy you're talking to, but... if people doing business can hide behind the limited liability said business provides then it's fair to separate private communication from business communication and possibly declare that limited liability doesn't come without loss of privacy to ensure the law is being followed for business communications. It's unfair to use personal privacy rights to try and hide illegal business activity thus absolving any actual person from being responsible while also allowing them the limited liability of a corporation so if any wrongdoing becomes known no one can be blamed.

When people do awful things in a business context they say "it's just business."

Can't turn around and say, "at work this is my personal communication."

That's a business interacting with the outside world. That is a business having a conversation, and should probably be recorded.

Internally it's people and they should be able to have some privacy.

If you're in a large number of regulated industries, this is already a requirement (see: SOX).

He's also enabling ethical people to protect themselves from unethical people who will take messages out of context to construe them as something else.

So I went to read the privacy policy on the cyberdust site and came across this gem in section 6.1:

"Your information, and the contents of all of your online communications (including without limitation chat text, voice communications, IP addresses and your personal information) may be accessed and monitored as necessary to provide the Service and may be disclosed: (i) when We have a good faith belief that We are required to disclose the information in response to legal process (for example, a court order, search warrant or subpoena); (ii) to satisfy any applicable laws or regulations (iii) where We believe that the Service is being used in the commission of a crime, including to report such criminal activity or to exchange information with other companies and organizations for the purposes of fraud protection and credit risk reduction; (iv) when We have a good faith belief that there is an emergency that poses a threat to the health and/or safety of you, another person or the public generally; and (v) in order to protect the rights or property of Radical App, including to enforce our Terms of Service."

If you needed any more proof that this is just security theatre, check out the FAQ as to why they need your email:

"We require you to enter your email address upon sign up so that you can recover or reset your password if you forget it."

No way will this get me to switch from textsecure.

"Disappearing" message apps like this will obviously cut down on the volume of logged messages. However, like snapchat, I worry that it lulls users into a false sense of privacy and security -- and it is naive to think you'll always know when a screenshot is taken. And this false security may breed a cavalier / sloppy attitude in what you say and send.

As I've told my kids (and I think this applies here), do not assume that the messages either disappear, or stay private. Or that you will even know that a screenshot has been taken.

* photos of the phone can be taken

* 3rd party apps may be able to take screenshots w/o notification

* security breaches in the messaging company

* messaging company logging data even when they say they are not

* Poor app implementation / caching

* Etc.. etc...

I try to assume that my family, friends, and enemies will eventually see and read what I send.

Were they trying to be ironic, by providing screenshots of the application? For which the messages should have disappeared? I guess there were no obvious identifying cues from the app. But a person could make them in the message sent back. So this suffers from the same problems as other "ephemeral" apps, the "screenshot", right?

Assumably faking a screenshot of text is much easier than of a picture. And the messages are being deleted as a specific needed feature to both of the users; you wouldn't message a journalist with it and not expect other humans to be able to find out about it.

someone came on Shark Tank and proposed an app that would capture incoming messages and not show them unless you know a password and the procedure. The app owner intended it for secretive messages between two people. O'Leary immediately pounced and said it would be great for corporations, banking and investment because so much info is sensitive and a loss of a phone can be devastating.

Cuban said he didnt like it, that it promoted cheating and didnt want to think his loved ones were cheating.

how is this different? so instead of secretive messages between two people, its secretive messages between two people in the context of regulation. of course, the self disappearing nature is new addition to the same concept, like Snapchat.

I'm assuming that ST is scripted television for the most part (as much as 'reality' TV can be scripted) and the people who do all the legwork and pick these products sit with the "sharks" before hand trying to drum up a dramatic narrative for the show. Cuban was just playing his role to counter the other guy. That's how you get ratings and that's how you get paid. Anything past that is giving these guys way too much credit.

Cuban's "good guy" narrative on ST is a character he plays. This proposal is more the "real" Cuban, someone who fights for the interests of the 1%.

Its the text equivalent of "lets move this conversation to a phone call". With all that that implies. (Unlike any potentially on-the-record IM).

http://en.wikipedia.org/wiki/Analog_hole

I was under the impression that this violates CALEA.

They presumably still must comply with a court order for a tap. AT&T doesn't store the contents of your telephone calls either.

I think most people's impressions of CALEA requirements are pretty far off base.

CALEA says you must be able to provide wiretap access if compelled by a lawful order to do so.

It does not say that you must record and archive everything just in case it's ever asked for.

I wonder if this article could be made even more slanted.

I agree, but I think they are writing to their audience.

It came out in a court filing that Google's internal IM system(based on Gchat) is completely off-the-record(OTR) to avoid discovery while Google removed the OTR option for Gchat for the public.

I guess potentially incriminating conversations like the below are now held over company IM instead of company email.

http://www.theverge.com/2011/05/12/google-android-skyhook-la...

The OTR option is still there, see the "Hangout history" checkbox in the Hangout's settings. They did remove the global option to choose the default setting though. By default history is on for regular accounts and off for Apps accounts.

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